Citation Nr: 0401182
Decision Date: 01/13/04 Archive Date: 01/22/04
DOCKET NO. 02-19 094 ) DATE
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THE ISSUE
1. Whether a February 5, 2002 decision of the Board of
Veterans' Appeals, which denied a claim for entitlement to
service for diabetes mellitus based on exposure to Agent
Orange, should be revised or reversed on the grounds of clear
and unmistakable error (CUE).
REPRESENTATION
Moving party represented by: The American Legion
ATTORNEY FOR THE BOARD
J. D. Deane, Associate Counsel
FINDINGS OF FACT
1. The veteran in this case served on active duty from July
1965 to December 1968.
2. Both the veteran's August 2002 statement and the
representative's November 2002 brief do not contain the date
of the Board of Veterans' Appeals decision to which the
motion relates or set forth any allegations of clear or
unmistakable error of fact or law in the Board's February
2002 decision.
CONCLUSION OF LAW
Because the requirements for a motion for revision of a
decision based on clear and unmistakable error have not been
met, the motion must be dismissed without prejudice to
refiling. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R.
§ 20.1404 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The law provides that a decision by the Board is subject to
revision on the grounds of CUE. See 38 U.S.C.A. § 7111
(West 2002). Under 38 C.F.R. §§ 20.1400 - 1411, motions for
review of prior Board decisions on the grounds of CUE are
adjudicated pursuant to the Board's Rules of Practice. See
38 C.F.R. §§ 20.1400 -1411 (2003).
A motion for revision of a decision based on CUE must be in
writing, and must be signed by the moving party or that
party's representative. The motion must include the name of
the veteran; the name of the moving party if other than the
veteran; the applicable Department of Veterans Affairs file
number; and the date of the Board of Veterans' Appeals
decision to which the motion relates. If the applicable
decision involved more than one issue on appeal, the motion
must identify the specific issue, or issues, to which the
motion pertains. Motions which fail to comply with the
requirements set forth in this paragraph shall be dismissed
without prejudice to refiling under this subpart. See 38
C.F.R. § 20.1404(a) (2003).
A motion alleging CUE in a prior Board decision must set
forth clearly and specifically the alleged clear and
unmistakable error, or errors of fact or law in the Board
decision, the legal or factual basis for such allegations,
and why the result would have been different but for the
alleged error. See 38 C.F.R. § 20.1404(b) (2003). Non-
specific allegations of failure to follow regulations or
failure to give due process, or any other general, non-
specific allegations of error, are insufficient to satisfy
the requirement of the pleading requirements, and must be
dismissed without prejudice. The Board has original
jurisdiction to determine whether CUE exists in a prior
final Board decision. See 38 C.F.R. § 20.1400 (2003).
I. Entitlement to Service Connection for Diabetes Based on
CUE
The Board issued a decision dated on February 5, 2002, which
denied the veteran entitlement to service connection for
diabetes mellitus based on exposure to Agent Orange. In the
Board's February 2002 decision, issues of entitlement to
service connection for schizophrenia and special monthly
pension benefits on account of the need for aid and
attendance were referred to the RO for appropriate action.
In August 2002, the veteran filed a motion for review of
purported denial of a claim for entitlement to service
connection for schizophrenia based on the grounds of clear
and unmistakable error (CUE) under 38 U.S.C.A. § 7111. The
veteran's statement also included the enclosure of a letter
from his wife addressed to the Secretary of Veterans
Affairs, which detailed the veteran's symptoms of a claimed
psychiatric disability.
The Board then sent the veteran a November 2002 letter,
which notified him of the receipt of his request for review
of a Board decision on the grounds of CUE and of the
regulations concerning such requests in 38 U.S.C.A. § 7111
and in title 38 of the Code of Federal Regulations beginning
at § 20.1400.
Thereafter, the veteran's representative submitted a
November 2002 written brief presentation which listed the
question at issue as entitlement to service for diabetes
mellitus based on exposure to Agent Orange. In addition,
the veteran's representative noted that "the veteran
contends that his case should be review under the provisions
of CUE" based upon the statement received in August 2002.
The veteran's representative then listed multiple passages
of "boilerplate" discussion of statutes and case law,
including the topics of CUE, the pro-claimant system,
standard of proof, and procedural requirements, without any
specific reference to errors in the Board's February 2002
decision.
Multiple requirements required to file a proper motion for
revision of a decision based on CUE under 38 C.F.R.
§ 20.1404 have not been met. Most importantly, the
veteran's August 2002 motion concerns his attempt to obtain
service connection for a psychiatric disorder, which was
never the subject of a Board decision.
Under 38 C.F.R. § 20.1404(b), a motion alleging CUE in a
prior Board decision must set forth clearly and specifically
the alleged clear and unmistakable error of fact or law in
the Board decision, the legal or factual basis for such
allegations, and why the result would have been different
but for the alleged error. In this case, the veteran's
August 2002 motion only sets forth the fact that he believes
he is entitled to service connection for schizophrenia based
on the grounds of CUE under 38 U.S.C.A. § 7111. The August
2002 motion by the veteran contains no allegations of a
clear and unmistakable error of fact or law in the Board's
February 2002 decision. In addition, the Board must note
that the file does not contain a Board decision on the issue
of entitlement to service connection for schizophrenia.
Therefore, the veteran cannot file a motion alleging CUE in
a prior Board decision when a prior Board decision on the
issue of entitlement to service connection for schizophrenia
does not exist.
The November 2002 brief submitted by the veteran's
representative is also void of any allegations of clear or
unmistakable error of fact or law in the Board's February
2002 decision. The representative's brief does list the
issue decided by the Board in February 2002 -- entitlement
to service for diabetes mellitus based on exposure to Agent
Orange. But, otherwise, the brief simply refers to the
veteran's August 2002 motion for entitlement to service
connection for schizophrenia based on CUE and then quotes
law, including caselaw, pertaining to CUE.
The Board also notes a minor failure to comply with the
requirements of 38 C.F.R. § 20.1404(a). A motion for
revision of a decision based on CUE must contain the date of
the Board of Veterans' Appeals decision to which the motion
relates. Neither the veteran's August 2002 statement nor
the representative's November 2002 brief include the date of
the Board of Veterans' Appeals decision to which the motion
relates.
As neither the veteran's August 2002 statement nor the
representative's November 2002 brief comply with the
requirements set forth in 38 C.F.R. § 20.1404 in order to
properly file as well as plead a motion alleging CUE in a
prior Board decision, the motion is dismissed without
prejudice.
II. VCAA
The Court has held that, as a matter of law, the provisions
of the VCAA have no applicability to CUE motions. See
Livesay v. Principi, 15 Vet. App. 165, 178 (2001); Pierce v.
Principi, 240 F. 3d. 1348 (Fed. Cir. 2001) (affirming CUE
denial without referring to VCAA provisions). This CUE
motion is limited to a retroactive review of the evidence of
record at the time of the February 2002 Board decision. The
Board provided the veteran with ample notice of the
applicable law and regulations pertaining to CUE motions in
the November 2002 letter as well as gave the veteran ample
opportunity to present his arguments. As the VCAA
provisions do not apply to CUE motions and the veteran has
been provided due process, the Board finds that there is no
prejudice to the veteran in proceeding to the merits of his
motion at this time.
ORDER
The motion is dismissed without prejudice to refiling.
____________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Only a final decision of the Board of Veterans' Appeals may
be appealed to the United States Court of Appeals for
Veterans Claims. 38 U.S.C.A. § 7252 (West 2002); Wilson v.
Brown, 5 Vet. App. 103, 108 (1993) ("A claimant seeking to
appeal an issue to the Court must first obtain a final BVA
decision on that issue.") This dismissal under 38 C.F.R.
§ 20.1404 (2003) is not a final decision of the Board. 38
C.F.R. § 20.1409(b) (2003). This dismissal removes your
motion from the Board's docket, but you may refile the
motion at a later date if you wish.